Saturday, February 22, 2003

politics and judging

Three inter-related things about politics and judging this morning:

(1) I've talked earlier about Republican Party v. White, the recent Supreme Court decision about the First Amendment rights of prospective judges, the decision recognizing that judges (even those not on a supreme court) have the power to make law and therefore that lawyers' views on disputed legal topics are an important thing to consider when deciding whether to make them judges. The legal world is all in a dither now, since this principle has been taken further in a federal trial court ruling in New York. It is poetically beautiful that this decision -- essentially recognizing that there is no way to draw a dividing line between judges and politics -- comes at the behest of a Republican New York state court judge who had been disciplined for taking part in the Florida Republican "bourgeois riot" during the Bush v. Gore nightmare. The real question now is whether Democratic and progressive judicial candidates will have the sense to use the First Amendment rights that the Republicans have so strenuously pushed for, in future state-court judicial contests.

(2) A must-read article by eminent law professor Cass Sunstein, in The American Prospect, about the far-right takeover of the federal bench.

(3) I got a call from a Justice Department person the other day, asking my opinion (as one who has litigated against him in the past) of Alabama Attorney General Bill Pryor as a prospective 11th Circuit nominee. I told that person what I have previously said here (a view that is, by the way, published here entirely as my own view, not to be attributed to anyone other than myself): that although he is an honest and smart and personally pleasant person, he is very much an ideologue and an extremist. It will be interesting to see if the White House actually does nominate him. If it does so, then all of the excuses that are now so much in vogue as to the nominations of people like Sutton and Estrada -- "I don't really have any views on that", or "I was only representing my client" -- simply will not wash. As Attorney General, Pryor has been the client as well as the lawyer. When the State of Alabama has taken positions in the Supreme Court, as a party or as amicus, it has been because Pryor believed those positions and decided that the funds and prestige of the State of Alabama should be used to advance those positions. When the State of Alabama has taken positions in the Eleventh Circuit, it has been because Pryor believed those positions and believed that the Eleventh Circuit was free to agree with him, given the current landscape of Supreme Court precedents -- which is to say that it can reasonably be inferred that everything the State of Alabama said in a brief to the Eleventh Circuit, is how Pryor would have voted had he been a judge on that court. If this nomination does in fact occur, there is an undeniable paper trial miles long and yards wide; and Pryor is on public record as believing that Senators have the duty to scrutinize, and vote based upon, a judicial nominee's ideology. Hold on to your hats, if this nomination comes to pass.

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